stituting a completed crime. It should be noted that, in any event, the proposed section would cover one who solicits another to engage in conduct that might constitute an attempt, e.g., one who seeks the performance of an act which because of some unknown circumstance would not result in the intended criminal result, because the goal determines the solicitor's liability.

In addition, it is believed that the statute should embrace conduct solicited which might involve only complicity in the commission of an offense rather than the direct commission of the offense. If A solicits B in turn to solicit C to commit murder, A should be liable even though he did not himself contact C. The conduct sought from В will itself involve the commission of an offense under the complicity or conspiracy provisions. This is consistent with the traditional common law view and with Federal case law.22 It is explicit in the proposed statute that the solicited person's commission of the offense may be either as principal or as accomplice.

Third: the fact that specific* conduct is required serves a significant purpose. While solicitation of another to commit a crime apparently is not absolutely privileged by the first amendment,23 it remains a legislative question whether the punishment of solicitations should be curtailed in order to protect free speech. The objective is not to protect one who uses words as a means to crime, who intends that his words should cause a criminal result. It is not contended that he makes a contribution to community discussion which is worthy of protection. The problem is in preventing legitimate discussion or agitation of an extreme or inflammatory nature from being misinterpreted as solicitation to crime. It would not be difficult to convince a jury that inflammatory rhetoric in behalf of an unpopular cause is in reality an invitation to violate the law rather than an effort to seek its change through legitimate criticism. Minority criticism may have to be extreme in order to be politically audible.24

The Supreme Court has expressed its concern in this area in a number of cases interpreting the Smith Act (18 U.S.C. § 2385.) This Act provides in part:

22

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States... by force or violence, or by the assassination of any officers of any such government. . . .

...

Thus, for example, if two people agree to commit crime X, and then seek a third person to perpetrate the crime, they would be guilty of a conspiracy to commit crime X. United States v. Lester, 282 F. 2d 750 (3d Cir. 1960), cert. denied, 364 U.S. 937 (1961). See MODEL PENAL CODE § 5.02, Comment at 87 (Tent. Draft No. 10, 1960), for a discussion of the common law decisions supporting this view.

* The term "specific" has been changed to "particular" in the Study Draft. Dennis v. United States, 341 U.S. 494 (1951).

24

"In Hartzel v. United States, 322 U.S. 680 (1944), the conviction of the defendant for willfully attempting to cause insubordination, disloyalty, mutiny or refusal of duty in the United States military service (during wartime) was reversed because his statements did not make direct or affirmative appeals to that effect, even though they were characterized, by Mr. Justice Jackson, as ". . . vicious and unreasoning attacks on one of our military allies, flagrant appeals to false and sinister racial theories and gross libels of the President." 322 U.S. at 687.

In Yates v. United States, 354 U.S. 298 (1957), the Court adopted the view that the Smith Act did not prohibit advocacy and teaching of forcible overthrow as an abstract principle divorced from any effort to instigate action to that end; that Congress intended to punish only the advocacy "directed at promoting unlawful action". Moreover, the advocacy must assume the form of present advocacy of, or future immediate violent overthrow of the government; that is, it must be "advocacy of action' for the accomplishment of such overthrow either immediately or as soon as circumstances prove propitious, and uttered in terms reasonably calculated to 'incite' such action." Scales v. United States, 367 U.S. 203, 230 (1961). Incitement to action, as contrasted with an expression of Communist doctrine, is the key factor.25

The proposed solicitation statute makes an effort, consistent with the above Supreme Court decisions, to protect legitimate agitation by requiring that the criminal conduct allegedly solicited by the speaker be "specific." How specific is "specific" must be left to the courts which analyze the facts of particular cases, in the same manner the Supreme Court dealt with the Communist cases.

5. Affirmative Defense of Renunciation of Criminal Purpose.-Subsection (4) provides for a renunciation defense similar to that proposed for attempt. The justifications and comments pertinent to abandonment of criminal attempts are generally applicable here. (See commentary on Attempt (section 1001), paragraph 7.) It may be possible in a final version of both statutes to eliminate duplication of those provisions defining renunciation which are identical.

6. Defense of Legal "Immunity".-Subsection (2) of proposed section 1003 reflects the same policies that are expected to be embodied in the statute dealing with complicity. Basically, the provision is designed to ensure that one who could not be liable as an accomplice if the substantive crime were completed will not be liable for solicitation. The reasoning behind the anticipated complicity section, which would be carried over to the proposed solicitation provision, would be that one who is the victim of the crime, for example, the 15-yearold victim of statutory rape should not be liable as a participant in the offense even if she solicited it. To hold the female an accomplice in a statutory rape upon her person would be inconsistent with the legislative purpose to protect her against her own weakness in consenting.

*For example, in Scales the Court stated (367 U.S. at 234) that at least the following patterns of evidence would be sufficient to constitute illegal advocacy:

(a) the teaching of forceful overthrow, accompanied by directions as to the type of illegal action which must be taken when the time for revolution is reached and (b) the teaching of forceful overthrow, accompanied by a contemporary though legal course of conduct clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated.

In Noto v. United States, 367 U.S. 290, 297-98 (1961), the Court stated:

We held in Yates and we reiterate now, that the mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching . .

Following a similar line of reasoning the Supreme Court decided, in Gebardi v. United States, 287 U.S. 112 (1932), that a woman could not be guilty under the Mann Act of a conspiracy to transport herself across State lines.

It is also expected to be provided in the complicity statute that a person shall not be liable as an accomplice if his behavior is inevitably incidental to the commission of the offense. Whether this will be so depends upon an interpretation of the particular statute involved; but typical examples are a female who seeks an abortion, the unmarried party in a bígamous marriage. If the substantive statute in these areas is read to negate accomplice liability for such activities, it should also bar liability for solicitation. This is provided in subsection (2). Subsection (2) is consistent with common law decisions and with the formulations in the Model Penal Code and the recently revised State Codes.26

7. Defense Based on the Mental State or Legal Position of the Person Solicited Precluded.-Subsection (3) of the proposed statute is based upon the universally acknowledged principle that one is no less guilty of the commission of a crime because he uses the overt behavior of an innocent or irresponsible agent. A person in this situation should be accountable as if the behavior were his own.

This principle has been repeatedly upheld in the Federal courts.27 The basic difference between the situation under the solicitation provision and those dealt with in such cases is that the solicitation provision will be utilized when the agent, for one reason or another, was unsuccessful in carrying out the criminal activity. However, if the agent's innocence or legal irresponsibility would not prevent prosecution of the instigator when the crime was committed, it should not bar this prosecution when the crime was solicited but never completed.

The precise language proposed here is modeled on the recent Michigan revision,28 but is not significantly different from the other recently revised codes. It may be noted that this provision will also be applícable to a conspiracy statute, thus suggesting that it may ultimately be placed in a separate section applicable to both crimes.29

8. Defense Based on the "Incapacity" of the Solicitor Precluded.— Subsection (e)* of the proposed statute rests on the generally accepted principle that a person who is not capable in his individual capacity

27

See the recent revisions and proposals cited in note 8, supra.

See, e.g., Maxey v. United States, 30 App. D.C. 63 (1907) (child given funds and directed to obtain abortion; viewed as instigation through irresponsible agent); United States v. Giles, 300 U.S. 41 (1937) (false entry by innocent persons because of defendants' withholding of entry slips); Nigro v. United States, 117 F.2d 624 (8th Cir. 1941), and United States v. Brandenberg, 155 F.2d 110 (3d Cir. 1946) (physicians circulating illegal narcotic prescriptions guilty of sale by innocent druggist); Boushea v. United States, 173 F.2d 131 (8th Cir. 1949) (innocent party induced to submit false claim).

MICHIGAN REV. CRIM. CODE § 1010 (4) (Final Draft 1967).

"See section 5.04 of the Model Penal Code (P.O.D. 1962), for an example of such a provision.

*This subsection was deleted as unnecessary. An accomplice is charged with the substantive crime, e.g., official misconduct, and therefore that the crime is defined so as to render him incapable of committing it must be negated. The solicitor, on the other hand, is charged not with the substantive crime, but with solicitation; and solicitation is not defined so as to exclude anyone from being able to commit it.

(for example, not being a Federal official) of committing a crime (for example, official misconduct), may nevertheless be liable for the behavior of another who has the capacity to commit the crime. Federal decisions offer numerous examples of this doctrine.30 In fact, as noted by the courts, the purpose of an amendment to 18 U.S.C. section 2 making an aider and abettor in the commission of a crime "punishable as a principal" rather than making him “a principal," is to clarify and make certain the intent to punish aiders and abettors regardless of the fact that they may have been incapable of committing the violation which they are charged with having aided and abetted.31

If the solicitor's "incapacity" would not prevent his prosecution for the completed offense when the crime has been consummated by the person solicited, it should not bar his prosecution for the solicitation where the crime was solicited, but never completed.

The precise language proposed here is a modification of the language used in the Model Penal Code, and of the other recently revised Codes.32 This provision, too, will be applicable to a conspiracy statute, and, therefore, may ultimately be placed in a separate section applicable to both crimes.33

9. Grading: Included Offense Considerations. Since successful solicitation-amounting to complicity or conspiracy-will be punishable under the statutes dealing with those situations, the principal concern in grading the distinct crime is with the unsuccessful solicitor. Present Federal law deals with him in the same manner in which it deals with persons who commit an attempt. If he is prosecuted for an attempt or under the few statutes which prohibit soliciting, the maximum penalty is equal to that of the perpetrator or the successful solicitor.

Many of the considerations relevant to punishment of an unsuccessful solicitation are the same as those involved in prescribing the punishment for an attempt. (Accordingly, see commentary on Attempt (section 1001), paragraph 8.) Upon the view that the purposes for punishing an attempt apply equally to punishing an unsuccessful solicitation, a number of recently proposed revisions punish solicitation and attempt equally-the proposed Michigan and Pennsylvania Codes and the Model Penal Code 35 A few of the other revisions treat solicitation as a lesser crime, but do not explain why, apparently adopting the common law approach in their respective jurisdictions with little change.

E.g., United States v. Socony-Vacuum Oü Co., 310 U.S. 150 (1940); United States v. Lester, 363 F.2d 68 (4th Cir. 1966), cert. denied, 385 U.S. 1002 (1967). Swanne Soon Young Pang v. United States, 209 F.2d 245 (9th Cir. 1953); United States v. Lester, 363 F.2d 68 (4th Cir. 1966), cert. denied, 385 U.S. 1002 (1967).

" MODEL PENAL CODE 85.04(1) (P.O.D. 1962). See Note 8, supra, for citations to recently revised Codes.

33 See MODEL PENAL CODE § 5.04 (P.O.D. 1962).

"Successful solicitations are presently punishable in the Federal system on a variety of bases. If the solicitor is prosecuted as an accomplice or under the few statutes which specifically prohibit soliciting, the maximum penalty is equal to that available for the perpetrator. If he is prosecuted under a conspiracy provision, the maximum is the same for all conspirators (but will vary according to which conspiracy statute is employed for the charge).

35 MICH. REV. CRIM. CODE 81010(6) (Final Draft 1967); PROPOSED CRIMES CODE FOR PA. § 505 (a) (1967); MODEL PENAL CODE § 5.05 (1) (P.O.D. 1962).

Delaware: if solicitation of a Class A felony (life imprisonment), 7 years; any other felony (25, 15, 7 or 4 years), 4 years; any misdemeanor (1 year or 3 months), 1 year (on the theory that when one solicits a petty misdemeanor, he makes the situation worse than if one person sought to commit it alone). PROPOSED DEL. CRIM. CODE §§ 300, 301, 302 (Final Draft 1967).

Illinois: maximum penalty for any solicitation, one year, but equal to solicited offense if less than one year. ILL. REV. STAT. c. 38, section 8-1 (1965).

New York: solicitation of murder or kidnapping in first degree (life imprisonment), seven years; any other felony (25, 15, 7 or 4 years), one year; any other crime (up to one year), 15 days. N.Y. REV. PEN. LAW §§ 100.00-100.10, 70.00, 70.05, 70.15 (McKinney 1967).

Although the draft here poses the choices posed in the draft on attempt equal to the offense solicited or one class lower the approach taken to the issues raised in the discussion of whether solicitation of any offense should be a crime may suggest that the penalties be prescribed as in Delaware, Illinois or New York.*

It should also be noted that, since an unsuccessful solicitation punishable under the provisions proposed here will be an included offense to the one for which a successful solicitor will be liable, issues involving solicitation will have to be treated in an included-offense statute. (See commentary on Attempt (section 1001), paragraph 9.)

* Study Draft section 1003 (5) grades solicitation the same as attempt Note, however, that with respect to unsuccessful solicitations, the solicitor will always be able to establish that his conduct did not come dangerously close to commission of the offense solicited, and so will benefit from reduction of Class B and Class C felonies.